I must confess that I find it rich that New Labour Ministers, who were in government for more than a decade, are now huffing and puffing about their “phone inboxes being hacked”. The sad truth is that, in government, they could have done a great deal to protect individual privacy by making such hacking a custodial offence.

In short, they failed to implement an offence that would have extended to a very large number of situations - well beyond the difficult issue of when (or whether) it is in the public interest for the press to hack into individual voicemail inboxes.

I also make a prediction: the custodial section 55 offence in the Data Protection Act is not going to happen for the foreseeable future.

In 2006, the Information Commissioner published details of the scale of the problem. In his documents What Price Privacy and What Price Privacy, Now (pdf), the Commissioner outlined how a range of organisations were obtaining personal data by deception.

Although this blog focuses on the press, the problem of unlawful obtaining was endemic across a range of industries. The current S.55 offence usually offers a minor punishment of a fine; it is not a recordable offence, and those successfully prosecuted do not have the indignity of providing a DNA sample or fingerprints. This gives the impression that the offence is of little importance to society.

In relation to the press, the Commissioner documented that following the invoice trail of a few private investigators who had delivered services to the following tabloid newspapers:

Daily/Sunday Mail had paid for 1,218 investigations to be undertaken by Private Investigators on behalf of up to 91 different journalists. The Daily/Sunday Mirror ordered 824 investigations on behalf of up to 70 journalists. The Sunday People ordered 802 investigations involving up to 50 journalists, and the News of the World (the paper of current interest) had ordered 228 transactions of up to 33 journalists.

The evidence above suggests there was a large number of invasions of privacy but the facts cannot be proven. For instance, if there were an investigation into a target politician, the fact of the investigation (as proved by the invoice) would not reveal evidence as to the methods employed by the investigator. It is very unlikely that the fact of “hacking into voicemail inboxes" would appear on any invoice!

However, the number of investigations undertaken by a handful or private investigators at the behest of tabloid newspapers is simply staggering. They show a systemic use of this kind of investigation and it is inconceivable that all newspaper editors appear to be ignorant of the methods employed by their contracted agents. After all, in total 305 journalists had commissioned about 3,500 investigations into individuals. So is the News of the World's claim that there was an isolated case of hacking undertaken by a rogue reporter credible? I leave you to answer that one.

The lack of evidence meant that all the Information Commissioner could do was to summarise his findings (in 2009):

The main case was Operation Motorman. This was a case where a private investigator had been supplying personal information to some 305 journalists. The personal information included details of criminal records, registered keepers of vehicles, driving licence details, ex-directory telephone numbers, itemised telephone billing and mobile phone records. Documentation seized at the home of the private investigator included reports, invoices, settlement of bills between the detective and many of the better known national newspapers – tabloid and broadsheet.

The Labour Government had greeted the What Price Privacy reports by conceding the need for custodial sentences. However in 2008, it backed down over its plans to introduce jail sentences of up to two years for those who obtained personal data by underhand methods. Although, it tabled two amendments to the Criminal Justice and Immigration Act 2008 signifying the custodial offence was coming, the actual implementation of the custodial sentence needed the Minister to exercise his powers and lay an order before Parliament.

As there was no use of these powers, the effect of the amendments was to maintain the status quo of the current Section 55 offence and further delay any custodial element. The changes also created a new defence for journalists to the Section 55 offence which is operational.

Eighteen months of New Labour inaction followed. In the Autumn of 2009, the Ministry of Justice tabled a consultation document on The knowing or reckless misuse of personal data. This consultation ended in January 2009 and since the General Election was looming, the product of that consultation was quietly dropped. The reason for this can be found in my blog of 12th Feb 2010, where I wrote:

The sticking point (of commencing the custodial offence) I suspect is the application of the offence to the special purposes and in particular journalism. It has dawned on the Government that embracing legislation which could imprison journalists has very little to commend it when a General Election is looming. One can also imagine the fuss if this measure was actually passed by a Parliament full of MPs whose credibility is about zero, thanks the expenses scandal.

However, with the new coalition government elected, penal policy has changed and there is an emphasis on not creating new custodial sentences. Kenneth Clarke now wants to reduce prison numbers – not increase them. That is why I think there will be no new custodial sentences for some time – even though the purpose of the custodial sentence is more symbolic than being an actual offence that will increase the jail population.

However, back to the main point. When ex-Labour Ministers claim invasion of privacy on our TV screens in the next few days, remember, they had their chance to do something about it - and blew it.

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.